U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

IN THE MATTER OF JET MIDWEST TECHNIK, INC. FDMS NO. FAA-2015-0637 FAA CASENO. 2014CE050039 (Civil Penalty Proceeding) ADMINISTRATIVE LAW JUDGE Han. Richard

### C. Goodwin Hearing Date: NOT YETASSIGNED Hearing Location: Kansas City, MO 

# RECFI\lED JUN 292015 

## HEARING DOCKET

RESPONDENT'S ANSWERAND AFFIRMATIVE DEFENSES COMES NOW, Respondent, Jet Midwest Technik, Inc. (hereinafter "JMTI"), by and throughundersigned counsel, pursuant to Rule 209 ofthe Rules ofPractice (14 C.F.R. § 13.209) and hereby files the following Answer to the Administrator's Complaint, served onAprill4,

ANSWER

I. Section I ofthe Complaint does not contain any allegations requiring a response. II. 1. JMTI admits the allegations contained in section II, paragraphnumber 1 ofthe Complaint.

1 OnMay 11, 2015, the parties filed a Joint Motionto Stay Proceeding extendingthe time to Answer until July 9, 2015 (Exhibit A attached hereto).2. JMTI admits the allegations contained in section II, paragraph number 2 ofthe Complaint. 3. JMTI admits the allegations contained in section II, paragraph number 3 ofthe Complaint. 4(a). JMTI lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained section II, paragraph number 4(a) ofthe Complaint. 4(b). JMTI lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in section II, paragraph number 4(b) ofthe Complaint. 5. JMTI admits the allegations contained in section II, paragraph number 5 ofthe Complaint. 6. JMTI lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in section II, paragraph number 6 ofthe Complaint. 7. JMTI denies, as stated, the allegations contained in section II, paragraph number 7 of the Complaint. 8. JMTI lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in section II, paragraph 8 ofthe Complaint and therefore, denies same and demands strictproofthereof. III. 1(a). Respondent has moved for dismissal ofthe allegations contained in section III, paragraph number 1(a) ofthe Complaintpursuantto 14 C.P.R. 

### §13.218(£)(5).

2l(b). JMTI lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in sectionIII, paragraph 1 (b) ofthe Complaint andtherefore, denies same and demands strict proofthereof. l(c). JMTI lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in section III, paragraph 1 (c) ofthe Complaint and therefore denies the allegation and demands strict proofthereof. l(d). JMTI lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in sectionIII, paragraph 1 (c) ofthe Complaint and therefore denies the allegation and demands strict proofthereof. I(e). JMTI lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in section III, paragraph 1 (e) ofthe Complaint and therefore denies the allegation and demands strict proofthereof. 2. JMTI denies that pursuant to 49 U.S.C. § 4630l(a) and (d), it is subject to a civil penalty not to exceed $11,000 for each ofthe violations alleged. 3. JMTI denies that under the facts and circumstances ofthis case, a civil penalty of $50,000 is appropriate. Any other allegations not specifically numbered by paragraph are hereby denied. AFFIRMATIVE DEFENSES 1. Respondent relies upon the affirmative defense ofreasonable reliance. See Administratorv. Blum, NTSB Order No. EA-5371 (February 29, 2008). 2. In determining the civil penalty amount, the Complainanthas failed to considerthe Nature ofthe Violation; Whether the Violation was Inadvertent orNot Deliberate; Certificate Holder's Level ofExperience; Attitude ofthe Violator; Degree ofHazard; Action Taken by



### 3Employer or Other Authority; Use ofa Certificate; Violation or Incident History; Decisional Law; Ability to Absorb Sanction; Consistency ofSanction; Whether the Violation was Reported Voluntarily; or Corrective Action. See FAA Order 2150.3B Ch. 7. See also Folsom'sAirService, Inc., FAA Order No. 2008-11 (November 6, 2008), p. 11. 3. The proposed civil penalty fails to reflect the totality ofthe circumstances surrounding the violations. See Folsom'sAir Service. Inc., FAA OrderNo. 2008-11 (November 6, 2008),p. 12; EasternAir Center. Inc., FAA Order No. 2008-3 (January 28, 2008). 4. Finding multiple violations for the same offense constitutes "'piling on' [that] should be avoided except under the most egregious circumstances." In the Matter of Carr, FAA Order No. 1998-2 at 11-12 (March 12, 1998). 5. The FAA's interpretation ofits aviation regulations is unconstitutionally vague. See Thomas v. Hinson, 74 F.3d 888, 889 (8th Cir. 1996); see also Trans StatesAirlines, Inc. v. FAA, 439 F.3d 863, 864-865 (8th Cir. 2006); Heath v. SEC, 2009 U.S. App. LEXIS 24128 at 53-55. 6. The FAA's application ofits Federal Aviation Regulations in this case is contrary to the regulation's plain language. See Advanta USA, Inc. v. Chao, 350 F.3d 726, 728 (8th Cir. 2003), quoting Gardebring v. Jenkins, 485 U.S. 415,430, 108 S. Ct. 1306, 99 

### L. Ed. 2d 515 (1988). See also Trans StatesAirlines, Inc. v. FAA, 439 F.3d 863, 864-865 (8th Cir. 2006). 7. In determining the civil penalty amount, the Complainant has failed to consider the Respondent's size, particularly in determining the alleged offender's ability to absorb the sanction. 8. JMTI does nothave the financial ability to pay the proposed civil penalty. 9. The proposed civilpenalty would have a detrimental effect on the ability ofJMTI to continue doing business.

410. The Federal Aviation Administration's (FAA's) interpretation ofits Federal Aviation Regulations in this case is arbitrary, capricious, an abuse ofdiscretion, or otherwise not in accordance with law. See 5 U.S.C. § 706(2) (A); Watkins v. NTSB, 178 F.3d 959, 961 (8th Cir. 1999).11. JMTI asserts that the Complainant lacks substantial basis in law and fact to continue prosecution ofthis matter against it. Dated: June 23, 2015

5 Gr,ory

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## w· on, Esq.

**T~Aviation** LawFirm

**~--·/** 1997 Annapolis Exchange Parkway Suite 300 Annapolis, MD 21401 Tel: (301) 294-8550 Fax: (301) 294-2525 Counsel for RespondentCERTIFICATE OF SERVICE I hereby certify thatI have this date sentviaU.S. mail, postage pre-paid, an original and one copy ofthe foregoing Respondent'sAnswer andAffirmative Defenses addressed to: ORIGINAL AND ONE COPY Federal Aviation Administration 800 Independence Avenue, SW Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright

**Building~Suite** 2Wl000 Washington, DC 20591 Andfurther, that I have this date served a copy ofthe foregoing via facsimile and U.S. mail, postage pre-paid, to the following: ONE COPYVIA FACSIMILE NO. 202-366-7536 HON. Richard C. Goodwin U.S. Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 Attn: PatriciaMatthews (Richard.Goowin@dot.gov) ONE COPY VIA FACSIMILE NO. 816-329-3771 Mark G. Camacho, Esq. Federal Aviation Administration Central Region, ACE-7 901 Locust, Room 506 Kansas City, MO 64106-2641 Tel: 816-329-3765 Fax: 816-329-3771 Counsel for Complainant Dated: June 23, 2015

6 Gregory S. Winton, Esq. The AviationLawFirm 1997 Annapolis Exchange Parkway Suite 300 Annapolis, MD 21401 Counsel for Respondent